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![handle is hein.slavery/ssactsengr0310 and id is 1 raw text is: OLLIVE V. BOOKER
wheresoever; and also all my goods, &c., after payment of my just debts and funeral
expenses, it was held that no more passed by this devise than an estate for life. In
Goodtitle v. Maddern (4 East, 500), Grose, J., says, The rule has been long established,
that, if the executor be bound to pay the debts by the terms of the devise, he must
take a fee in the lands devised to him in respect of which such obligation is thrown
.upon him ; but if he be only to pay them out of the produce of the land devised, or
only to take the land after payment of debts, then, without words of inheritance,
the fee will not pass. He also referred to Sanderson v. Dobson (ante, 141).
Per Curiam.(c) We are clearly of opinion that Catherine Roberts took an estate
in fee-simple under the will of Thomas Roberts, by force of the words all my real
and personal estate. There will therefore be no rule.
Rule refused.
[416] OLLIVE v. BOOKER. Nov. 13, 1847.-To an action for not loading a vessel
in pursuance of the terms of a charterparty, the defendant pleaded, setting out
the whole of the charterparty, which stated, that it was agreed between the
plaintiff, original charterer of the good ship or vessel called the 'Dove,' Al,
of the measurement of 149 tons, or thereabouts, now at sea, having sailed three
weeks ago, or thereabouts, and the defendant, that the ship, being tight, staunch,
&c., should proceed to Marseilles (after having delivered her cargo at Genoa),
and there load certain goods of the defendant, and therewith proceed to a safe
port in the United Kingdom, calling at Cork or Falmouth for a certain rate of
freight; thirty working days to be allowed, Sundays excepted. The plea then
averred, that time was an essential and material part of the contract, and the
probable situation of the vessel with reference to the date of her sailing, and
the object of her voyage, was also an essential and material part of the contract,
and that, in point of fact, at the time of the making the charterparty, the vessel
had not sailed three weeks, but a materially and unreasonably later time, of
which the defendant had no notice or knowledge, for which cause the defendant
neglected and refused to load the vessel :-Held, that the time at which the
vessel sailed was material, that that statement in the charterparty amounted to
a warranty, and that the defendant was entitled to retain his verdict upon the
plea, on motion for judgment non obstante veredicto.-Semble, per Parke, B.,
that the averment that the plaintiff knew the time the vessel sailed was
immaterial.
[S. C. 17 L. J. Ex. 21. Approved, Behn v. Burness, 1863, 3 B. & S. 760. Referred
to, Jackson v. Union Marine Insurance Company, 1874, L. R. 10 C. P. 133.]
Assumpsit. The first count of the declaration stated, that before and at the time
of the making of the promise hereinafter mentioned, the plaintiff was lawfully
possessed of the ship or vessel hereinafter mentioned, under and by virtue of a certain
charterparty of affreightment theretofore &c., made between one A. B., the master of
the said ship or vessel, and the plaintiff; and the plaintiff being so possessed of the
said ship or vessel as aforesaid, it was theretofore &c. agreed between the plaintiff and
the defendant, by a certain other charterparty of affreightment then made in writing
between the plaintiff, therein described as original charterer of the good ship or vessel
called the Dove, Al, of the measurement of 149 tons or thereabouts, therein alleged
to be at sea, having sailed three weeks before, and the defendant, therein described
as of London, merchant, that the said ship, being tight, staunch, and strong, and
every way fitted for the voyage, should, with all convenient speed, sail and proceed
to Marseilles, after having delivered her cargo at Genoa for the ship's account, or so
near thereto as she might safely get, and there load from the factors of the defendant
a full cargo of linseed or other goods, which the defendant bound himself to ship, not
exceeding what she could reasonably stow and carry over and above &c., and, being
so loaded, should therewith proceed to one safe port in the United Kingdom, calling
at Cork or Falmouth [417] for orders, which were to be given in due course of post,
or so near thereto as she might safely get, and deliver the same on being paid freight,
and after the rate &e. : the act of God &c. excepted. The freight was to be paid on
(c) Pollock, C. B., Parke, B., Alderson, B., Rolfe, B.
1 EX. 416.](ViewImageLocal?handle=hein.slavery/ssactsengr0310&div=1&collection=&method=preview&ext=.png&size=3)